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Court of Appeals Upholds OSHA’s Hexavalent Chromium PEL

15 May 2009Drew Amorosi

Surface finishers nationwide were recently provided an opportunity to exhale a great sigh of relief—at least, for shop owners and managers to be certain. On Feb. 23, the U.S. Third Circuit Court of Appeals upheld the revised hexavalent chromium permissible exposure limit established by the Occupational Safety and Health Administration (OSHA) in 2006. The suit was brought forth by, among others, interest group Public Citizen, which sought an even lower PEL for operations subject to hexavalent chromium exposure. The plaintiffs in this case contended that the OSHA PEL established in 2006 did not go far enough in limiting workers’ exposure to hexavalent chromium, a known carcinogen.

A three-way tug-of-war has developed among industry representatives, public interest groups, and OSHA since the revised hexavalent chromium PEL of 5 µg/m3 was established. The surface finishing industry initially advocated no change from the pre-2006 PEL of 52 µg/m3; any downward revision of this limit, in the eyes of finishers, would introduce significant financial pressure on an industry with an ever-increasing regulatory burden.

Public Citizen, however, pulled in an opposite direction, advocating for new PEL limits that would levy additional regulatory burdens to achieve compliance. It suggested a 1 µg/m3 hexavalent chromium PEL that would afford workers an added level of protection regarding health and safety concerns, among them: lung cancer, nasal tissue damage, asthma, and dermatitis. But such safeguards would run the risk of eliminating the jobs of workers for whom the PEL was supposed to protect.

A third force contributing to this struggle included OSHA, which established a PEL of 5 µm/g3 that would reduce, but not entirely eliminate, cancer risk for workers exposed to hexavalent chromium in their finishing operations. Whereas industry advocates claimed any downward revision of the PEL would negatively impact the bottom line for affected industries, OSHA forged a middle ground between the two sides. The agency deemed the PEL sought by Public Citizen to be economically unattainable, an opinion echoed by the Court of Appeals decision.

OSHA had contemplated a reduction of the old 52 µg/m3 PEL to as little as 1 µg/m3, but the agency’s feasibility study recognized that the proposed PEL would be technologically unattainable, especially for workers in the welding and aerospace painting segments. Furthermore, as noted in the Court of Appeals decision, adhering to a PEL of 1 µg/m3 would require compliance costs in excess of 2.7% of revenues and 65% of profits. OSHA acknowledged that the 5 µg/m3 PEL would only reduce cancer risk, but in light of such significant compliance costs, this new PEL would provide a proper balance between added worker safety and maintaining the economic viability of industrial operations where employees are exposed to hexavalent chromium.

The Court of Appeals reviewed the OSHA decision-making process with respect to the newly established PEL and found that, based on procedural precedent, OSHA’s regulatory process correctly incorporated the economic feasibility research into its revised PEL. “The court found that [our] analysis was supported by substantial evidence, adequately explained, and consistent with both past practice and prior decisions,” noted OSHA in an official statement provided to Metal Finishing. “The Court undertook a comprehensive review of the extensive administrative record, the scientific body of evidence and medical research, and relevant case law.” And from OSHA’s comments on the decision, it is apparent that the agency is pleased with the outcome to date. OSHA expects that engineering controls for hexavalent chromium exposure, due to take effect in May 2010, will result in “a significant reduction in the risk of developing lung cancer for workers exposed to hexavalent chromium.” Indeed, keeping in mind that the new PEL will not eliminate cancer risk, OSHA’s own data clearly point toward a significant reduction in cancer incidence with the establishment of the new 5 µg/m3 PEL (table).

Likely Incidence of Cancer Based on Exposure to Hexavalent Chromium

Proposed Hexavalent Chromium PEL (µg/m3 )

Incidence of Cancer (per 1,000 workers) Over a 45-year Working Lifetime

52

100–351

5

10–45

1

2.1–9.1

Source: OSHA

The Appellate Court decision affirmed the obvious linear relationship between exposure to hexavalent chromium over time and cancer risk, based on data collected by OSHA. But the issue of industry competitiveness versus worker safety, and the cost–benefit analysis that followed, was at the heart of the decision from late February.

“OSHA analyzed economic feasibility by questioning whether a standard under consideration would eliminate or alter the competitive structure of an industry,” the Appellate Court’s decision explained. “OSHA determined that the proposed 1 µg/m3 PEL was economically infeasible for electroplating job shops” and “concluded that these shops could not be expected to absorb the costs to comply.” The Court of Appeals went further by confirming that, based on OSHA’s feasibility study, a hexavalent chromium PEL of 1 µg/m3 “would alter the competitive structure of the industry.”

As finishers embark upon an era of uncertainty and perhaps volatility in the regulatory sphere, one thing can be gleaned from this decision: although compliance will cost finishing shops in the end, it certainly could have been much worse from an economic perspective. Nonetheless, the revised hexavalent chromium PEL of 5 µg/m3 provides U.S. manufacturers with the world’s most stringent limitations on exposure to the compound.

The question now is, will it stick? “OSHA feels the issue has been put to bed and would like to move on to other priorities,” said Christian Richter, principal with The Policy Group, during the 2009 Washington Forum held recently. “But with Public Citizen’s allies now in the Obama Administration, this could change the dynamic.”

While a reversal of the chrome PEL ruling seems unlikely, Washington insiders feel scrutiny regarding other metals could intensify. “Public Citizen might renew its efforts with its friends in the Department of Labor to re-examine the PEL for lead,” said Marc Freedman, director of Labor Law Policy, Labor, Immigration & Employee Benefits Division, U.S. Chamber of Commerce. “We’ll need to keep a close eye on this.”

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